The Potency and Problems of Equality: Lessons from Same-Sex Marriage

by
November 5, 2015

Now that a few months have passed since the U.S. Supreme Court’s decision in Obergefell v. Hodges, many are taking a step back to reflect upon what happened. One of the principal concerns posed by this decision, as many astute observers have long anticipated, relates to religious freedom, which only makes this decision and its underlying logic more troubling. Obergefell and the case for same-sex marriage more broadly find their ultimate logic in an ideological undercurrent that warrants careful attention. This undercurrent is propelled by a commitment to advancing an inadequate and even harmful view of equality by force of public law in a way that often obscures the real issues at play.

In Obergefell, the High Court found within the Constitution an unenumerated right to same-sex marriage. According to an essay by Matthew Tuininga, “marriage is a fundamental right,” but “access to marriage was not the issue facing America or the Supreme Court” in Obergefell. About the fundamental right to marry this ruling was not—the Court had to redefine marriage before it could frame its decision as one focused on  equal access to marriage. My objective here is to probe deeper into how the Court went about changing marriage while claiming that all it was really doing was elaborating further dimensions of due process and equal protection rooted in the 14th Amendment of the Constitution. In sum, the Court had to regard as equal two institutions which are substantially different by grounding its logic in the individual right to marry, only to then assert a right to marry on behalf of same-sex couples. This turn in the Court’s analysis from the rights of individuals to the rights of couples is profound and deserves further examination. But first, a brief look at the concept of equality is necessary.

Clarifying Equality

The Obergefell decision reflects the Court’s commitment to the preeminent public norm of our time— equality. Who can be opposed to equality? Certainly not Christians—rather the opposite—we should be among its most insistent advocates given our confession that every human being bears the image of God, which is the foundation of the many sources within Scripture and historic Christianity that declare the equal dignity of all persons. The main problem with the principle of equality, however, is that its unparalleled appeal in the modern world causes many to ask far more from it than it can provide (for a superb essay on this theme, see Steven D. Smith’s, “Equality, Religion, and Nihilism”).

To go to the heart of the matter, equality-based arguments cannot be refuted as such—again, no one should oppose equality—rather, when an equality-based argument is asserted, we must ask what kind of equality are we talking about. Is what’s at stake the equal treatment of all persons or the equal treatment of different actions, institutions, and/or social arrangements (i.e., different ways of life)? Equal treatment of persons is based in the simple imperative that like things should be treated equally without regard to immaterial differences that may exist between those things. Whether or not these differences are immaterial is always a key question, but in the context of the equal treatment of persons, the burden of proof should fall disproportionately on those who want to justify differential treatment. Sometimes unequal treatment is justifiable, like when states deny driver’s licenses to persons who are blind. Sometimes, however, unequal treatment is obviously condemnable, like denying equal voting rights to persons based on their race.

Conversely, the burden of justifying equal treatment of different ways of life should fall disproportionately on the proponents of such a view because in any given case the differences among various actions, institutions, or social arrangements are likely to be not immaterial but significant. A mere assertion of equality here will not do—values other than equality will undoubtedly be implicated and demand attention. To our detriment, “equality of persons” and “equality of ways of life” arguments are becoming increasingly intermixed in American politics, law, and culture.

Same-sex Marriage and Equality

The majority in Obergefell, and marriage equality advocates more broadly, contend that the issue of same- sex marriage can be adjudicated almost entirely on the basis of the equal treatment of persons when it should be understood as a question of equal treatment of different institutions. Marriage brings together a husband and wife while same-sex unions unite two men or two women. Marriage is the kind of relationship which has a direct connection to reproduction in that the bodily union of husband and wife holds the potential for life generation. Same-sex unions must have the participation of persons outside of their relationships to have children. Every child has a biological mother and father, and marriage serves to unite children to their mother and father in a single family and household. Same-sex unions, in adoption for example, can provide a needy child with two loving parents, but that reparative act is not the same thing as the act of a man and woman uniting for life in marriage to prevent their children from needing adoption in the first place. Adoption can be one of the most beautiful acts of generosity and self-giving a person can engage in so this is not about somehow pitting conception and adoption against one another, but it is to say that giving due respect to both doesn’t require ignoring or obscuring their differences. My goal here is simply to highlight some of the differences between marriage and same-sex union and to ask whether these differences matter for the purposes of defining marriage. But let us not stop there. Indeed, many thoughtful people make the case that these differences do not matter for what makes a marriage, but the key point of this essay is that they cannot make this case based upon the principle of individual equality alone. Merely stating that gays and lesbians are equal to everyone else is to ignore the above differences rather than to confront and refute their relevance for defining marriage. It is intellectually dishonest to say otherwise.

On page 4 of the majority opinion in Obergefell, we find a summation of the ruling:

The challenged laws burden the liberty of same-sex couples, and they abridge central precepts of equality. The marriage laws at issue are in essence unequal: Same-sex couples are denied benefits afforded opposite-sex couples and are barred from exercising a fundamental right.

While Justice Kennedy primarily grounds his opinion in the liberty to exercise a fundamental right to marry, such a liberty only makes sense after he’s already eliminated the traditional meaning of marriage by rendering same-sex and opposite unions as essentially the same (an equality of institutions argument). But notice how in the above quote he attaches the “burden of liberty” that makes the “marriage laws at issue… unequal” to same-sex couples, not individuals. Again, it is same-sex couples that are “barred from exercising a fundamental right.”

In examining the fundamental right to marry, why might Justice Kennedy have moved from an individual focus in some portions of his opinion—e.g., “the right of personal choice”; “individual autonomy”; “the liberty of the person”; “Decisions about marriage are among the most intimate that an individual can make”—to a focus on same-sex couples in this and other passages? He had to make this move in order to establish a right to same-sex marriage because attaching the right to marry to individuals would have precluded the rights of liberty and equal protection from operating the way he needed them to. If the fundamental right to marry attaches to individuals, then the substantive questions about what marriage is and the latitude states have to maintain traditional marriage laws are no longer so easily resolved by Kennedy’s equality-based reasoning. In addressing same-sex couples’ fundamental right to marry, he confers on them eligibility for marriage simply by addressing them as couples. If, by contrast, he would have consistently focused his opinion on the right of individual persons to marry, he would have had to deal with the fact that people with same-sex attraction still have access to traditional marriage, even if they overwhelmingly reject it. But such rejection of traditional marriage by persons who experience same-sex attraction did not necessarily make traditional marriage laws a constitutional problem that the principle of equality needed to fix. Ponder for a moment whether the principle of equality can tell us whether a hospital should be treated the same as a university or a for-profit business should be treated the same as a charity. Sorting out the relevant issues to decide whether or not these institutions merit equal treatment involves numerous non equality-based considerations. The same is true when looking at opposite-sex marriages and same-sex unions.

Kennedy does put forth “four principles and traditions” (beginning on page 12) to demonstrate why the fundamental right to marry applies equally to same-sex couples, but none of these reasons attempts to define marriage nor is it clear on what authority the Court may assert these reasons to regard same-sex unions and traditional marriages as equal. What Kennedy leaves us with is an argument for the equal treatment of same-sex couples that operates as if it is an equal treatment claim on behalf of individuals. By doing this, he makes an “equal treatment of institutions” argument under the guise of an “equal treatment of persons” framework. Kennedy thus harnesses the intrinsic force of that individual framework while avoiding the substantive considerations about what marriage is that an equality of institutions framework would necessarily require.

Since the first of Kennedy’s four principles and traditions mentions the Supreme Court’s 1967 Loving v. Virginia decision and because the racial discrimination analogy is so integral to LGBT rights debates more broadly (see this law review article for more on this theme), a brief look at Loving is warranted. The Loving decision invalidated bans on interracial unions and stated that marriage is “one of the vital personal rights essential to the orderly pursuit of happiness by free men.” The analogy with Obergefell is quite clear to many who viewed the contested bans on same-sex marriage in Michigan, Ohio, Kentucky, and Tennessee as requiring similar judicial undoing. The equality of persons is put forth as the basis for this conclusion, but the problem is that this principle cannot settle whether a ban on interracial unions, including marriages, and a refusal to recognize same-sex unions as marriages present the same issues. I submit that the difference between these two historical legal barriers to marital recognition consists in distinguishing what these laws actually did. The laws remedied by Loving regarded interracial marriages as illicit marriages while the laws addressed by Obergefell regarded same-sex marriages as non-marriages. The principle of the equal treatment of persons immediately challenges the idea that the racial composition of a married couple is relevant to the couple’s legal access to marriage. The same principle does not necessarily have anything to say on whether the distinction between opposite-sex marriage and same-sex unions should be dissolved in order to designate them as the same institution. There may be reasons for doing so, but they won’t be reasons that arise in any meaningful way from the equality of persons principle.

Conclusion

The principle of equality is so potent, and rightfully so, that its misuse holds the potential to cause tremendous social havoc, as Obergefell and trends in public views on marriage demonstrate. Sustained efforts to reframe equality-based arguments, when appropriate, to bring to light the underlying issues at play is a vital corrective to their widespread misuse. Foremost today, we must diligently and respectfully resist the overwhelming tendency in American politics, law, and culture to conflate the morally legitimate idea of the equal treatment of persons with the morally problematic idea of the equal treatment of all ways of life. If American Christians fail to gain the assent of the broader culture on important issues because we fail to persuade on the merits of those issues, so be it—our call is first to be faithful, not to win. But if we fail to persuade because equality was asserted so forcefully (and inappropriately) that the merits of an issue never see the light of day, everyone loses in the long run.

The principle of equality appears poised to continue to grow as a largely unreflective yet powerful cultural force, which is increasingly expressed legally in the form of nondiscrimination laws (The Equality Act foreshadows the scope of these efforts). To name just one adverse consequence of this trend, faith-based organizations operating in the areas of adoption, education, and other social services are now facing growing pressures to discard their religiously-based convictions about marriage and sexuality because of a misconstrual of these convictions as a form of status-based discrimination against gays and lesbians. The Obergefell decision leaves only more ambiguity, at best, on these matters (see this analysis of the Institutional Religious Freedom Alliance).

Christians must remain resolute in reminding culture-shaping institutions, our neighbors, and one another that equality finds its most coherent meaning and fullest expression in the intrinsic value of every person. Christians know of the transcendent source of this intrinsic value, but we also know that such equal regard for persons does not equate to equal regard for all human actions, institutions, and social arrangements. A Christian understanding of the human person as both inherently good and deeply flawed provides the basis for this vital distinction. Unfortunately, Justice Kennedy wielded the principle of equality to render a verdict on same-sex marriage that the equal treatment of persons principle cannot justify. The confusion and excess at the core of Kennedy’s understanding of equality represents an aggressive pattern that is sure to continue for the foreseeable future. Christians should contend not for subverting the principle of equality, but instead for keeping it within its proper limits so it can do the good work for which it was intended of safeguarding the norm of equal dignity and ensuring all persons are treated equally before the law.


Nathan Berkeley
Nathan Berkeley currently works in federal immigration policy with prior experience in law enforcement and Congress. He welcomes comments on this article at nberkeley@mac.com.